NEGOTIATIONS WITH OPPOSITE PARTY-- DEMANDING PHYSICAL EXAMINATIONS --
Writing plaintiff and his attorney jointly and demanding that plaintiff submit to a
physical examination does not violate the spirit of the prohibition against negotiations
with the opposite party. However, extreme caution should be exercised when dealing with
the other party represented by counsel in other matters.

Defendants attorney wrote a letter addressed jointly to plaintiff's attorney and
to plaintiff making demand that plaintiff submit himself to a doctor of defendant's choice
for a full and complete medical examination. Query: Is it a violation of the Canons of
Ethics for defendant's attorney to send such joint letter to plaintiff's attorney and to
plaintiff, and particularly is such a joint letter in violation of Texas Canon of Ethics
No. 9 which provides: "A lawyer should not in any way communicate upon the subject of
controversy with a party represented by counsel."

Opinion

The committee is of the opinion that such a joint letter does not violate any Canon of
Ethics and especially does not violate the spirit of Texas Canon of Ethics No. 9.

It is pointed out that said Canon No. 9 was headed: "Negotiations with Opposite
Party," and that such a joint letter was not considered by the committee to
constitute a "Negotiation."

It is also pointed out that physical examination of a plaintiff is not a matter of
right in our state courts but that defendant can make demand upon plaintiff for such an
examination and that if plaintiff refuses such refusal can be brought out before the jury
as a circumstance tending to discredit plaintiff's claim as to the extent of his injuries,
and that although demand on plaintiffs attorney is a demand upon plaintiff that
plaintiff's attorney might fail to communicate such demand to plaintiff and that plaintiff
could then testify that he knew of no such demand, that if he had known of same he would
have gladly complied with it, etc., and that as a practical matter the effect of the
failure to submit to plaintiff for such examination might thereby be lost.

It was the consensus of the committee members that this opinion should be strictly
confined to the facts of this particular case, and that extreme caution should be
exercised in sanctioning any communication between counsel and opposing party represented
by an attorney. (8-1)